[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
No. 11-10361 ELEVENTH CIRCUIT
NOVEMBER 17, 2011
D.C. Docket Nos. 9:08-cr-80094-DMM-2; 9:10-cv-80283-DMM
VIRGIL LEON DARVILLE,
llllllllllllllllllllllllllllllllllllllll Petitioner - Appellant,
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent - Appellee.
Appeal from the United States District Court for the Southern District of Florida
(November 17, 2011)
Before WILSON, PRYOR, and KRAVITCH, Circuit Judges.
Pro se appellant Virgil Leon Darville appeals the district court's dismissal
of the second claim ("Claim Two") of his 28 U.S.C. § 2255 motion to vacate his
sentence.1 In Claim Two, Darville argued that his sentence enhancement based on
state court convictions was erroneous because Darville was in the process of
having those convictions vacated or expunged. Darville claims that the district
court's dismissal was improper because it seriously hinders his ability to raise
Claim Two again, in the event that his state convictions are vacated or expunged;
namely, that his next attempt will be considered a "second or successive" motion
under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and
thus subject to stringent standards of consideration.2 Because we recently held in
Stewart v. United States that a § 2255 motion arising from the vacatur or
expungement of state convictions will not be considered "second or successive"
under AEDPA, we affirm the district court. 646 F.3d 856
, 865 (11th Cir. 2011).
The entire motion was dismissed, but Darville appeals only Claim Two.
A § 2255 motion that has been declared "second" or "successive" may only be
considered by a court if it complies with gatekeeping provision of § 2255, which provides:
A second or successive motion must be certified as provided in section 2244 by a panel of
the appropriate court of appeals to contain""
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
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Darville was convicted of federal drug offenses on December 3, 2008, and
the government filed an information on that same day notifying Darville of its
intent to seek an enhanced penalty under 21 U.S.C. § 851, based on a prior state
felony narcotics conviction. The enhancement was granted, and it increased his
potential sentencing range from 10 to 40 years of imprisonment to 20 years to life
imprisonment. Darville acknowledged this change in his subsequent plea
agreement and plea hearing. On February 20, 2009, the district court sentenced
Darville to 240 months of imprisonment, and this conviction became final March
On February 9, 2010, Darville filed a timely motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. Claim Two of this motion was that
his sentence enhancement under 21 U.S.C. § 851 was invalid because Darville was
pursuing vacation in state court of his prior narcotics convictions. Darville
acknowledged that because his challenges to the state convictions had not yet been
decided, Claim Two was not yet ripe, so he requested that the district court either
hold the claim in abeyance or dismiss it without prejudice and allow him to re-file
later when it ripened.
The motion was referred to a magistrate judge who recommended, in
relevant part, that the motion to stay Claim Two should be denied and that Claim
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Two should be dismissed without prejudice. The magistrate noted in his report
that Darville might be barred from re-filing Claim Two because of the one-year
statute of limitations established by 28 U.S.C. § 2244(d) or other procedural
defenses. The district court then issued an order adopting the magistrate's report.
Darville was issued a certificate of appealability ("COA") by this court regarding
whether the district court erred in dismissing Claim Two without prejudice,
subject to any federal procedural limitations that may apply.
We review the district court's factual findings for clear error and questions
of law de novo. Lynn v. United States, 365 F.3d 1225
, 1232 (11th Cir. 2004) (per
curiam). Our scope of review is limited to issues specified in the COA. Murray v.
United States, 145 F.3d 1249
, 1250""51 (11th Cir. 1998) (per curiam).
In Stewart, the petitioner, Sherodney Stewart, had his prior state convictions
vacated, then filed a chronologically second § 2255 motion requesting vacatur of
his sentence enhancement based on his career-offender status. 646 F.3d at
857""58. In considering whether Stewart's motion was second or successive under
AEDPA, we noted that Johnson v. United States, 544 U.S. 295
, 125 S. Ct. 1571
(2005), had established that "the basis for a claim challenging a sentence
predicated on faulty state convictions arises when the order vacating those
predicate convictions issues." 646 F.3d at 858""59 (citing Johnson 544 U.S. at
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305, 125 S. Ct. at 1579). We also explained that the phrase "second or
successive" did not "refer to all habeas applications filed second or successively in
time," but was a "term of art that takes its full meaning from the Supreme Court's
case law." Id. at 859""60. We then pointed out that in Panetti v. Quarterman, 551 U.S. 930
, 127 S. Ct. 2842
(2007), the Court declined to interpret "second or
successive" in a "manner that would require unripe (and, often, factually
unsupported) claims to be raised as a mere formality." Id. at 863""65. Therefore,
we held that because the basis for Stewart's claim did not exist at the time of the
ruling on Stewart's initial § 2255 motion, his chronologically second claim was
not "second or successive" within the meaning of AEDPA.
Darville contends that the district court's actions have "effectively
prevented Mr. Darville from refiling" Claim Two, but his argument does not
account for the holding of Stewart. The precedent of Stewart establishes that if
Darville, acting diligently, succeeds in having his state convictions vacated or
expunged, then he may bring another § 2255 motion raising Claim Two without
having it be deemed "second or successive" within the meaning of AEDPA.
Because the only contention raised in Darville's appeal""that the district court's
actions prejudiced his rights to seek future relief""is unfounded, we affirm.
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